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Biodiplomacy: a Better Approach to Dual Use Concerns

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Biodiplomacy: a Better Approach to Dual Use Concerns SAINT LOUIS UNIVERSITY SCHOOL OF LAW BIODIPLOMACY: A BETTER APPROACH TO DUAL USE CONCERNS VICTORIA SUTTON* I. INTRODUCTION Biological materials and research with the power to save lives, as well as the power to take them, have been deemed “dual use” technologies, research, or materials. The United States Centers for Disease Control and Prevention (CDC) has created a program known as “dual use research of concern” (DURC) as a way of creating a category for increased surveillance and scrutiny of these activities. The National Institutes of Health (NIH) has adopted DURC as a process they will use when soliciting grants and awards involving research that may meet this definition.1 The definition of DURC from the National Science Advisory Board for Biosecurity (NSABB) is a good starting point. The definition is limited to research, but many other activities like manufacturing or translational activities could otherwise be dual use activities. The definition is as follows: “research that, based on current understanding, can be reasonably anticipated to provide knowledge, products, or technologies that could be directly misapplied by others to pose a threat to public health and safety, agricultural crops and other plants, animals, the environment or materiel.”2 Internationally, the term has also been used as a focus for safeguarding research. The United Nations Biological and Toxin Weapons Convention (BWC) has included dual use monitoring as a possible Confidence Building Measure (CBM) to show party compliance.3 The Global Alert and Response * Paul Whitfield Horn Professor, Texas Tech University School of Law and Director of the Center for Biodefense, Law and Public Policy. This work was supported in part by NIH Grant no. 5 U54AI057156-10. 1. NAT’L INST. OF HEALTH, NIH POLICY ON MITIGATING RISKS OF LIFE SCIENCES DUAL USE RESEARCH OF CONCERN (2013). 2. NAT’L SCI. ADVISORY BD. ON BIOSECURITY, PROPOSED FRAMEWORK FOR THE OVERSIGHT OF DUAL USE LIFE SCIENCES RESEARCH: STRATEGIES FOR MINIMIZING THE POTENTIAL MISUSE OF RESEARCH INFORMATION 17 (2007). 3. Kelsey Gregg, Compliance with the Biological and Toxin Weapons Convention (BWC), THE FED’N OF AM. SCIENTISTS (Aug. 3, 2010), http://blogs.fas.org/blog/2010/08/com pliance-with-the-biological-and-toxin-weapons-convention-bwc/. 111 SAINT LOUIS UNIVERSITY SCHOOL OF LAW 112 SAINT LOUIS UNIVERSITY JOURNAL OF HEALTH LAW & POLICY [Vol. 7:111 (GAR) program of the World Health Organization (WHO) has also adopted a DURC program component.4 Despite its widespread popularity as a term upon which to hang a program, this kind of focus may prove to have shortcomings. First, the use of this term has the result of shifting the presumption to the scientist to prove that the research will not be used to harm, and it creates an atmosphere of suspicion in a culture of research that has always been open and sharing. Second, it presumes that dual use biological materials can be identified to warrant this special treatment. Both of these shortcomings may distract from many other aspects of biosecurity if DURC is relied on as the primary method for controlling biological research and materials. Communication and collaboration may be better tools for monitoring and understanding the risks and should not be minimized in favor of the ease of using a “catchy” term. Biodiplomacy is that package of considerations that might prove to be more useful in meeting the goal of global biosecurity by including dual use, but not focusing on it as a centerpiece for a policy. The use of the term “biodiplomacy” is a kind of diplomacy, unique in its need to treat biological research and commercial activities with the kind of control that will prevent catastrophic consequences from misuse. The term takes the traditional meaning of the term public diplomacy,5 and applies it to this unique area. The traditional meaning was once articulated by former diplomat Edmund A. Gullion in 1966: “By public diplomacy we understand the means by which governments, private groups and individuals influence the attitudes and opinions of other peoples and governments in such a way as to exercise influence on their foreign policy decisions.”6 But with time, the definition has come to embrace both the means as well as the results, and also includes actions taken domestically in response to pressures from international relations. The term “biodiplomacy” also extends to the strategy by which governments, private groups, and individuals influence the attitudes and opinions of other peoples and governments to create domestic and foreign policy concerning biological materials, equipment, and facilities to prevent making, using, or producing biological weapons. This is not required by the BWC, and the need to influence domestic policy with regard to individuals, 4. See Dual Use Research of Concern (DURC), WORLD HEALTH ORG., http://www.who. int/csr/durc/en/ (last visited Oct. 21, 2013). 5. Definitions of Public Diplomacy, TUFTS FLETCHER SCHOOL, http://fletcher.tufts.edu/ Murrow/Diplomacy/Definitions (last visited Oct. 21, 2013). The Fletcher School identifies the roots of public diplomacy originating in the 1960s but concludes that it has grown in scope beyond its traditional meaning. “Today it goes far beyond a classical definition involving how elected and appointed government officials communicate, argue and influence policies publicly to a more two-pronged concept involving cause and effect.” Id. 6. Id. SAINT LOUIS UNIVERSITY SCHOOL OF LAW 2013] BIODIPLOMACY 113 non-governmental organizations, and businesses in order to safeguard its life sciences could be accomplished through biodiplomacy. The definition of diplomacy implicitly includes “trust” as part of a strategy to encourage individuals and governments to be influenced by our views. In appealing to either a self-interest (in the case of an autocracy) or national interest (in the case of a democracy), a degree of trust is essential to make a convincing appeal in diplomacy. A diplomatic agreement is nothing more than a covenant of trust in a social contract between nations. The statement made by President George W. Bush after his first meeting with President Putin of Russia rings of that search for trust between nations when he expressed a mutual trust that came when he looked into his eyes and “was able to get a sense of his soul.”7 Trust is also implicit in biodiplomacy, particularly where dual use concerns are at stake. Any suggestion of a lack of trust is fatal to a diplomatic social contract of mutual trust. So it follows, standards that suggest a nation cannot be trusted with biological materials, equipment, and facilities fail because they are rife with notions of untrustworthiness. Many biological materials, facilities, and equipment can have both malevolent and good uses, but deeming all of them suspect makes for a rocky start to biodiplomatic relations. The inescapable truth is that where the policy indicates that individuals cannot be trusted with biological materials, equipment, and facilities, the foundation of the policy is one of distrust. Trust is essential to developing a culture of responsibility and accountability with biological materials and equipment if biosecurity is to be genuinely achieved by the global community. The CBM of the BWC were first established to implement Articles V and X of the BWC at the Second Meeting of the Parties in 1986.8 The Sixth Conference revived the mechanism and gave it new importance in the implementation and compliance aspects of the BWC.9 This mechanism exemplifies trust in its objective — to build confidence. It would also 7. The President’s News Conference With President Vladimir Putin of Russia in Kranj,1 PUB. PAPERS 685, 689 (June 16, 2001). “I found him to be very straightforward and trustworthy. We had a very good dialogue. I was able to get a sense of his soul . .” Id. 8. Second Review Conference of the Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Final Declaration, 2, 7, U.N. Doc. BWC/Conf.II/13/II (1986) [hereinafter Second Review Confrence], available at http://www.opbw.org/rev_cons/2rc/docs/ final_dec/2RC_final_dec_E.pdf. 9. See Sixth Review Conference of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and On Their Destruction, Final Document, 12, U.N. Doc BWC/Conf.VI/6 (2006) [hereinafter Sixth Review Confrence], http://www.opbw.org/rev_cons/6rc/docs/6/BWC_ CONF.VI_6_EN.pdf. SAINT LOUIS UNIVERSITY SCHOOL OF LAW 114 SAINT LOUIS UNIVERSITY JOURNAL OF HEALTH LAW & POLICY [Vol. 7:111 embrace the concept of dual use measures taken by a country, but is much broader in its options and possibilities. CBMs are difficult to assess for the public, however, because they are accepted with the promise of confidentiality, it makes them unavailable to the public where confidence could be further built.10 CBMs encompass a broader vision of enforcement of the BWC by the possibilities that can be captured by a nation’s culture and through legal traditions. The first part of this article examines the politics of public health, its globalization in politics, and the rise in the need for biodiplomacy. The second part discusses globalized governance and the use of international law and biodiplomacy. The third part discusses an approach to biological weapons deterrence based on models of risk of those countries most likely to have bioweapons activities and threats. Finally, the article will finish with some views and research for the future. II. PUBLIC HEALTH IN THE DIPLOMATIC AGENDA The BWC, effective in 1975,11 had a very simple but straightforward objective –– to stop the production and possession of biological weapons by nations.12 It came at the end of a biological arms race that was openly moving forward into a frightening future of cataclysmic biological warfare.
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